Visvis and Secretary, Department of Health and Aged Care - [2024] AATA 3159

Visvis and Secretary, Department of Health and Aged Care [2024] AATA 3159 (2 September 2024)
Division:GENERAL DIVISION
File Number(s): 2024/0733
Re:Louis Visvis
APPLICANT

AndSecretary, Department of Health and Aged Care
RESPONDENT

DECISION
Tribunal:Senior Member A Poljak
Date:2 September 2024
Place:Sydney

The stay order made by this Tribunal on 29 April 2024 is revoked, under subsection 41(3) of the Administrative Appeals Tribunal Act 1975 (Cth).
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Senior Member A Poljak
Catchwords
ADMINISTRATIVE – Interlocutory application – Request for revocation of stay of decision of the respondent – Where applicant failed to comply with the conditions of Stay – Application granted – Stay revoked.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth).
REASONS FOR DECISION
Senior Member A Poljak
2 September 2024

Louis Visvis, the applicant, is a former registered pharmacist. On 13 January 2009, the applicant was approved under section 90(1) of the National Health Act 1953 (Act) for the purpose of supplying pharmaceutical benefits at Terry White Chemmart Kogarah, Shops U1, 2 & 3, Kogarah Town Centre, Railway Parade, Kogarah NSW 2217 (approved premises).
The applicant was the subject of complaints of unsatisfactory professional conduct and professional misconduct committed in the period from January 2014 to July 2016 – essentially, that he failed as a proprietor pharmacist to have the oversight of the pharmacy and to supervise his employee pharmacists to ensure they were compliant with the NSW laws governing the dispensing and supply of Scheduled medications. The alleged breaches concerned the dispensing of over 50 forged prescriptions for Schedule 8 opioid medications, the supply of other medications that exceeded the prescribed dose, a shortfall of almost 35,000 5mg tablets of diazepam and a number of unaccounted Schedule 8 drugs.
Following an application made by the Health Care Complaints Commission (NSW), the New South Wales Civil and Administrative Tribunal (NCAT) found on 31 July 2020 that the complaints were made out. Critically, the NCAT had concern for “the trustworthiness and professional integrity of the [applicant] in the longer term”. The NCAT ordered (inter alia) that the registration of the applicant as a pharmacist be cancelled pursuant to paragraph 149C(1)(b) of the Health Practitioner Regulation National Law (NSW).
In March 2021, the Department of Health and Aged Care (the Department), received an application by the applicant to transfer ownership of the approved premises to his brother, James Visvis (James). In September 2023, the Department identified that the applicant was no longer registered as a pharmacist with the Australian Health Practitioner Regulation Agency. At no point did the applicant notify the Department that he was no longer registered as a pharmacist.
On 5 October 2023, a delegate of the Department invited the applicant to show cause as to why his approval to supply pharmaceutical benefits at the approved premises should not be cancelled. The applicant responded to that notice on 10 November 2023.
On 4 January 2024, the delegate cancelled the applicant’s approval under subsection 98(3) of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Visvis and Secretary, Department of Health and Aged Care [2024] AATA 3159
Case: [2024] AATA 3159
Decision Date: 2 September 2024

CaseChat Overview and Summary

These interlocutory proceedings concerned an application by the Secretary, Department of Health and Aged Care (the respondent) to revoke a stay order previously granted by the Administrative Appeals Tribunal (AAT) to Louis Visvis (the applicant). The stay order, made on 29 April 2024, had suspended the effect of a decision to cancel the applicant's approval to supply pharmaceutical benefits. The respondent sought revocation on the grounds that the applicant had failed to comply with a condition of the stay and demonstrated a disregard for the statutory scheme governing pharmacists and pharmacies. The applicant opposed the application.

The primary legal issue before the Tribunal was whether the applicant had breached the condition of the stay order, which permitted him only to seek the transfer of the pharmacy premises at Kogarah to his brother, James Visvis. The Tribunal was required to determine if the applicant's actions, or the respondent's conduct in relation to the transfer application, constituted a failure to comply with the spirit or letter of the stay order, thereby justifying its revocation.

The Tribunal reasoned that the condition of the stay order did not compel the respondent to approve the transfer application, but rather allowed the applicant to pursue it. While the applicant argued that the respondent's refusal to determine James Visvis's application for approval of the premises was an obstruction contrary to the stay, the Tribunal found that the stay orders did not impose any positive obligation on the respondent. The Tribunal noted that the applicant's own conduct, including the cancellation of his pharmacist registration in 2020, failure to notify the Department of this cancellation, and continued supply of pharmaceutical benefits in breach of the stay condition, weighed against him.

The Tribunal granted the respondent's application and revoked the stay order. The Tribunal concluded that the applicant had not complied with the condition of the stay and had demonstrated a lack of regard for the statutory scheme. The potential consequences for the approved premises and its customers were considered, but given less weight in light of the applicant's history of non-compliance.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 4 January 2024, the delegate cancelled the applicant’s approval under subsection 98(3) of the Act. The applicant was notified of the cancellation decision on 5 January 2024, and it came into effect at 5:00pm AEDT on 14 February 2024 (the cancellation decision). On 6 February 2024, the applicant applied to this Tribunal for an extension of time to seek review of the cancellation decision. On 14 February 2024, the applicant requested that the Tribunal make an order under subsection 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) to stay the operation of the cancellation decision. On 29 April 2024, Deputy President Rayment:(a)extended the time for the making of the application for review; and(b)ordered that the operation of the cancellation decision be stayed until the decision of the Tribunal on the application for review comes into operation or until further order, subject to the following condition:The applicant will not take any steps, or do anything under the present order, otherwise act contrary to the orders made by NCAT on 3 July 2020, other than seek to transfer the pharmacy at Kogarah to his brother. These interlocutory proceedings concern the respondent’s request to revoke the order made by the Tribunal on 29 April 2024, under subsection 41(3) of the AAT Act, because the applicant has not complied with the condition and continues to demonstrate a lack of regard for the statutory scheme regulating pharmacists and pharmacies. The applicant opposes the application. Consideration The condition to the stay prevented the applicant from taking “any steps”, and from doing “anything” under the stay order, other than seeking to transfer ownership of the approved premises (i.e., the pharmacy at Kogarah) to his brother. Since the stay order the applicant and his brother, James, have taken steps to transfer the ownership of the approved premises. On 5 June 2024, the applicant’s legal representative received a response from the respondent which said, inter alia:… I write to advise you that the department does not presently intend to determine Mr James Visvis’ application while the merits review application lodged by your client, Mr Louis Visvis, remains undetermined in the Administrative Appeals Tribunal (AAT application). As you know, the AAT application concerns the Secretary’s decision to cancel Mr Louis Visvis’ approval to supply pharmaceutical benefits from the same premises in respect of which Mr James Visvis now seeks approval. In those circumstances, the department’s view is that it would be premature to determine the change of ownership application when it is unclear whether the cancellation decision, which is inextricably linked to any decision on the change of ownership application, will be upheld. The applicant submits that the refusal to assess the validity of James’ application prevents the applicant from being able to transfer the Pharmacy to James and that this is at odds with the stay orders. It is submitted that the respondent has without any reasonable explanation obfuscated and stymied the transaction which is the subject matter of the stay and has refused to take any steps, other than activating the applicant’s PBS number. As such, it is contended that revoking the stay would reward the respondent’s inaction and defiance of the spirit of the stay.

Ratio Decidendi

Legal Principle Established

These interlocutory proceedings concern the respondent’s request to revoke the order made by the Tribunal on 29 April 2024, under subsection 41(3) of the AAT Act, because the applicant has not complied with the condition and continues to demonstrate a lack of regard for the statutory scheme regulating pharmacists and pharmacies. The applicant opposes the application. Consideration The condition to the stay prevented the applicant from taking “any steps”, and from doing “anything” under the stay order, other than seeking to transfer ownership of the approved premises (i.e., the pharmacy at Kogarah) to his brother. Since the stay order the applicant and his brother, James, have taken steps to transfer the ownership of the approved premises. On 5 June 2024, the applicant’s legal representative received a response from the respondent which said, inter alia:… I write to advise you that the department does not presently intend to determine Mr James Visvis’ application while the merits review application lodged by your client, Mr Louis Visvis, remains undetermined in the Administrative Appeals Tribunal (AAT application). As you know, the AAT application concerns the Secretary’s decision to cancel Mr Louis Visvis’ approval to supply pharmaceutical benefits from the same premises in respect of which Mr James Visvis now seeks approval. In those circumstances, the department’s view is that it would be premature to determine the change of ownership application when it is unclear whether the cancellation decision, which is inextricably linked to any decision on the change of ownership application, will be upheld. The applicant submits that the refusal to assess the validity of James’ application prevents the applicant from being able to transfer the Pharmacy to James and that this is at odds with the stay orders. It is submitted that the respondent has without any reasonable explanation obfuscated and stymied the transaction which is the subject matter of the stay and has refused to take any steps, other than activating the applicant’s PBS number. As such, it is contended that revoking the stay would reward the respondent’s inaction and defiance of the spirit of the stay. While the applicant is plainly aggrieved by the position taken by the respondent in processing the application to transfer the approved premises to James, the Tribunals’ orders on the stay do not require the respondent to do anything. The Tribunal does not have the power to order the respondent to approve the application. By the stay orders, the applicant was provided the opportunity to seek to transfer the pharmacy to his brother and that is what was done. The applicant further relies on a statement of James Visvis signed 19 August 2024 which outlines the step undertaken to transfer the proposed premises. The statement also outlines the potential impacts of the revocation of the stay, predominantly the closure of the approved premises and the potential impact to customers and to the community. While many of these claims are not supported by objective evidence, it is logical to conclude that the approved premises will not be able to operate should the stay be revoked, and the cancelation order comes into effect. However, less weight is given to these potential consequences in light of the fact that the applicant’s registration as a pharmacist was cancelled in July 2020, he failed to notify the Department of the cancellation of his registration, he continued to operate at the approved premises prior to and after the cancellation decision, and he continues to supply pharmaceutical benefits in breach of the stay condition.